Does Delaware's public records law require a school district to create records it doesn't have or get records from a private contractor?

Official title

02-IB03: FOIA Complaint Against Cape Henlopen School District

Plain-English summary

A Virginia resident with a second home in Delaware asked Cape Henlopen School District for a bus pickup/drop-off schedule for his neighborhood, claim forms for property damage he blamed on a school bus, and records of the district's inquiries with local zoning boards. The district said it doesn't run buses in that neighborhood (three private contractors do, and it gave him their contact information), doesn't have claim forms for buses it doesn't operate, and that its transportation supervisor's conversations with zoning boards were verbal, with no written record. The AG found no FOIA violation: the statute requires public bodies to let citizens inspect and copy existing public records, but it does not require a public body to create records that do not exist, and it cannot be used to compel a private contractor to hand over its own records.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can I use a FOIA request to make a government agency create a document that doesn't already exist?
A: No, according to this opinion. The AG found FOIA only requires production of existing public records; a public body cannot be found in violation for failing to produce a record, like a claim form, that it never created because the underlying service isn't one it provides.

Q: What if the records I want are held by a private company the government contracts with, not the government itself?
A: In this opinion, the AG found FOIA cannot be used to compel a private contractor (there, the school district's private bus companies) to produce its own records, since the contractor is not itself the public body subject to the request.

Q: Does it matter if the requester lives out of state?
A: The AG noted the requester appeared to be a Virginia citizen with a vacation home in Delaware, which raised a question about whether he could invoke the state's public records law at all, but the opinion assumed citizenship for purposes of analysis rather than resolving the point.

Background and statutory framework

The complaint concerned a records request to Cape Henlopen School District for a bus schedule, damage-claim forms, and records of zoning inquiries. Applying 29 Del. C. § 10003(a), which requires that public records be open to inspection and copying by citizens during regular business hours, the AG found the district had not violated FOIA because it did not possess a bus schedule for that neighborhood (private contractors operate those routes), did not have claim forms for buses it does not own or operate, and had no written record of verbal inquiries its transportation supervisor made with local zoning boards. The AG also cited Harold v. Orange County for the proposition that FOIA cannot be used to compel production of documents held only by a private contractor.

Citations and references

Statutes:

• 29 Del. C. § 10003(a), right of citizens to inspect and copy existing public records

Cases:

• Harold v. Orange County, 668 So. 2d 1010, 1011 (Fla. Dist. Ct. App. 1996), FOIA cannot compel production of documents held by a private contractor

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/02/01/02-ib03-foia-complaint-against-cape-henlopen-school-district/
• Original PDF: not linked from landing page

Original opinion text

Civil Division-Kent County February 1, 2002 02-IB03

Dr. Ido E. Colantuoni

6286 Dunaway Court

McLean, VA 22101-2204

RE: Freedom of Information Act Complaint Against Cape Henlopen School District

Dear Dr. Colantuoni:

On December 18, 2001, we received your letter alleging that the Cape Henlopen School District ("the School District") violated the public records requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"), by not providing you with information you requested. Specifically, you asked for: (1) a schedule of all school bus pickups and drop offs in your neighborhood (145 Beachfield Drive); (2) forms to present a claim for damage to your property allegedly caused by a school bus; and (3) documents relating to inquiries the School District made in the neighborhood and to local zoning boards.

By letter dated January 7, 2002, we asked the School District to respond to your complaint within ten days. We received the School District's response on January 11, 2002. According to the School District, it does not operate any buses in your neighborhood. The School District provided you with the names and telephone numbers of the three private contractors who service your neighborhood. The School District does not have any claims forms for you to present for re-imbursement because the School District does not own or operate the school buses in your neighborhood. Finally, the School District responds that "conversations with the Rehoboth and Sussex County Planning and Zoning were verbal. There are no records."

Relevant Statutes

FOIA requires that "[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body." 29 Del. C. § 10003(a).

Legal Analysis

It does not appear that you are a "citizen" of the State of Delaware but rather that you are a citizen of Virginia and have a second vacation home in Delaware. Nevertheless, for purposes of analysis, we will assume that you are a Delaware citizen and entitled to invoke the privileges of the state public records law.

FOIA does not require a "public body," which term includes a school district, to create records that do not exist. The School District does not have a form for you to present a claim for damage to your property allegedly caused by a school bus because the School District is not the owner or operator of the school buses in your neighborhood. The School District has provided you with the names and telephone numbers of the three private school bus contractors in your neighborhood. Similarly, the School District's Supervisor of Transportation has confirmed that she only made verbal inquiries with your neighbors and with local zoning boards, and there are no written records of those inquiries. The School District cannot produce records that do not exist.

The remaining information you are seeking in order to request reimbursement for damage to your property is in the possession of one of the private school bus contractors. FOIA, however, cannot be used to compel production of documents in the possession of a private contractor. See Harold v. Orange County, Fla. App., 668 So.2d 1010, 1011 (1996). There is no remedy under FOIA to address your concerns.

Conclusion

For the foregoing reasons, we determine that the School District has not violated the public record requirements of FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Ms. Margaret E. Peck, Supervisor of Transportation

Phillip G. Johnson, Opinion Coordinator